Thank you, reader Jim E., for tipping me off to this discussion at “Crooked Timber” on current Republican objections to “hate crime” legislation, and for thinking I could add something to it. I’ll do my best.
Republican opposition to hate crime legislation is not a model of consistency. As “Crooked Timber” notes, Jim Boehner (R-OH), who objects to hate crime legislation by calling it an attempt to criminalize thought, doesn’t object to all hate crime legislation — just those laws that would include within their definition crimes against gay Americans. There’s no dodging that, for Boehner at least, this is about gay rights, not meta-debates on criminal law.
But his problems run deeper than that. Generally, all crimes do indeed involve, to some degree, a criminalization of thought, or a sensitivity to the status of victim or defendant. Intentional homicide is much worse, morally, than reckless manslaughter; similarly, killing a peace officer in cold blood is much worse than killing an average citizen. Increased criminal penalties attach to both, criminalizing thought in the form of criminal intent (mens rea) or disrespect for the law, but only because the thoughts are acted upon, rather than merely thought.
This distinction is critical. Hate speech laws, criminalizing the vocalization of a criminal intent without a real act, are generally unconstitutional. Compare Wisconsin v. Mitchell, 508 U.S. 476 (1993) (upholding hate crime legislation as constitutional, per Chief Justice Rehnquist and a unanimous Court) (“A physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment”) with R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (striking down a model hate speech act). Because hate crime laws require both a mens rea and an already-criminal actus reus (bad act), the legal consensus, per a unanimous court, is that they’re just normal criminal laws, different only in that they criminalize an extra element not traditionally thought of as taboo — racial, religious, or sexual-orientation based hatred. So “Crooked Timber” is quite right to point out that, if this is “thoughtcrime,” the fault extends to the entire criminal code.
I will diverge from them on this point only: while hate crime laws can be justified solely on the grounds that they, like all laws, assess harsher penalties for more reprehensible crimes, I don’t think that should be our go-to justification. We shouldn’t have to debate the value of minority lives to find hate crime legislation compelling. The best justification, I think, is more objective: hate crimes are harder to deter, because they stem from a disbelief in the humanity of the victim. The crimes, thefore, aren’t just more shocking — they’re easier for a criminal to rationalize. Hate crime laws adjust for this disparity by reminding prospective lawbreakers that, even if they set their victim’s life at naught, the law will hold them accountable. The effect should be greater deterrence to meet a greater threat: hate crime laws don’t put minorities on a pedestal. They just equalize the moral calculus and ensure effective deterrence. If we’re to be “tough on crime,” we should all aspire towards that goal.